There Are Two Misdemeanor Marijuana DUI Charges in Arizona:

The citation or complaint usually contains both an impaired driving charge and a per se drugged driving charge:

1. Impairment to the Slightest Degree under A.R.S. 1381(A)(1): This law makes it illegal to drive while impaired by any drug or alcohol—including marijuana. This is Arizona’s zero tolerance DUI. It strictly prohibits driving while impaired by any alcohol or drugs, regardless of medical prescription.

2. Driving with an Illegal Drug in the Body under A.R.S. 1381(A)(3): This law makes it illegal to drive with active-marijuana in the body. A.R.S. §28-1381(A)(3) is a “strict liability” crime; it doesn’t matter whether or not the marijuana impaired the driver. The prosecutor only needs to prove that active-marijuana was in the body when driving.

Medical Marijuana Defense in DUI Cases.

The Arizona Medical Marijuana Act (AMMA) is operated by the Arizona Department of Health Services and allows qualifying patients to use and possess marijuana. A qualifying patient is a person diagnosed and certified by a doctor as having a qualifying medical condition and issued an Arizona Medical Marijuana Registry ID Card.

In Arizona, a medical marijuana card is only an affirmative defense to one of the marijuana DUI charges. To the zero tolerance charge, under A.R.S. 1381(A)(1), having a marijuana card is not a defense; however, you can still argue that you weren’t impaired. Arizona DUI law has zero tolerance for driving while impaired by marijuana; it doesn’t matter if the driver had a card. The medical marijuana card does provide an AFFIRMATIVE DEFENSE to the drugged driving charge under 1381(A)(3).

Under the medical marijuana DUI defense, you may have active, therapeutic levels of marijuana in your system, so long as it’s not impairing you while driving. Unfortunately, this burden is on the Defendant. As such, the Defendant either needs to testify on his use of marijuana, or use an expert witness to discuss the theoretical effects of the alleged marijuana in the defendant’s body.

What type of marijuana must be in the body to justify prosecution?

Arizona’s DUI laws outlaw driving with THC in the body; THC is the psychoactive constituent of marijuana. A driver can also be prosecuted for any impairing marijuana metabolite found in the driver’s blood or urine sample.

So what is an impairing marijuana metabolite? When people hear the term metabolism, they think about how quickly someone processes calories from food and drinks. While this is true, metabolism more generally refers to how we break down and process things we put in our body, including marijuana. The body processes marijuana through many steps. When we process its active ingredient—THC—it’s converted into new chemicals known as marijuana metabolites. These metabolites can remain active and continue to impact the brain and body. Certain marijuana metabolites can cause impairment while being processed.

Marijuana’s active ingredient is THC; as such, you cannot have that in your system while driving. When your body processes or metabolizes THC, it turns into 11-Hydroxy-THC. It’s illegal to drive with Hydroxy-THC in your body because it can cause impairment. The body then further processes (or metabolizes) Hydroxyl-THC into 11-nor-9-Carboxy-THC. Carboxy-THC is NOT an impairing metabolite; and as such, a driver with only Carboxy-THC should not be prosecuted. Prosecutors will decline or dismiss a marijuana DUI if only Carboxy-THC is present. In 2014, the Arizona Supreme Court barred the prosecution of marijuana DUI when only Carboxy THC is present.

How do Police Identify and Test Drivers for Marijuana Impairment?

Unlike an alcohol test, which measures BAC levels and correlated levels of impairment, a reported marijuana level cannot conclusively tell us whether a driver was impaired. The test only estimates how much marijuana was in the driver’s system based on a sample of blood or urine. Thus, we’re often left with an officer’s biased, untrained, and subjective testimony; the Officer reports that he thinks the driver was impaired based on his non-medical observations.

To combat this shortcoming, law enforcement invented its own way to test for drug impairment. They created drug recognition programs, in which they appoint officers as drug recognition experts (DRE’s). These self-proclaimed experts take a brief law enforcement class and test that certifies them to recognize drug use and impairment. DRE’s are called out to marijuana DUI investigations to examine drivers suspected of marijuana use. There’s no outside scientific studies or entities to support law enforcement’s DRE programs; the DRE’s are only supported by their own biased studies, tests, and programs.

A major problem with DRE officers—in marijuana cases especially—is that they almost never admit a mistake when tests confirm there’s no active marijuana in the Defendant’s blood. Once they suspect past marijuana use, they’ll almost always testify that the driver smoked it recently and was impaired. For example, if a driver tells an officer that she has a medical marijuana card and smoked a day earlier, the officer will go on a fishing expedition to find marijuana and look for signs of recent use. This is classic confirmation bias, self-fulfilling prophesy, and avoidance of cognitive dissonance. Officers seldom admit error or wrong doing—especially when it comes to their own investigations.

Interlock Device: As of January 1, 2017, there’s no interlock requirement for a non-alcohol DUI. The judge does, however, have discretion to add it on. If the judge elects to do so, you would have on your car for as little as six month so long as there’s successful compliance with routine device maintenance and never blowing a positive alcohol reading.

MVD Points: 8 points, which triggers Traffic Survival School.

Insurance: Obtain SR-22 Insurance Policy for up to 3 years (Can Sometimes be Avoided by serving an Admin Per Se Suspension up Front)

Mandatory Minimum Marijuana DUI under A.R.S. 28-1381(A)(1) and 28-1381(A)(3) IF previously convicted of any DUI offense in the past 7 years (84 months):

Jail: 90 days, but as little as 6 days jail and 24 days home detention, if your defense attorney successfully negotiates for home detention with a suspended jail sentence; this requires proof of completing an alcohol/drug assessment and classes. Home detention, if available, entails wearing a continuous alcohol monitoring device on your ankle or blowing twice a day into a telephonic alcohol breathe testing device. You’re permitted to go to work while on home detention. Home detention isn’t available in superior court or justice court. If home detention isn’t available, a defendant, at a minimum, would have to serve 30 days jail, but can participate in the jail’s work release program after serving 48 hours. Work release permits you to leave jail 6 days a week, 12 hours a day.

Money: Approximately $5,000 in fines, fees, and jail related costs.

Driver’s License: Driver’s license is revoked for one year; however, after the first 45 days of the revocation period, you can apply for a restricted license, which allows you to travel to and from work, school, medical, and court related appointments so long as an ignition interlock device is installed on your vehicle.

Interlock Device: As of January 1, 2017, there’s no interlock requirement for a non-alcohol DUI. The judge does, however, have discretion to add it on. If the judge elects to do so, you must have an interlock device on your car for 12 months.

Timothy Tobin is an experienced criminal defense attorney and DUI lawyer. Located in Mesa. Tobin Law Office represents clients throughout the valley including Mesa, Gilbert, Chandler, Phoenix, Tempe, San Tan, Apache Junction, and more.